Since 1977, Jon Michael Probstein has assisted people and businesses in all matters, is currently special counsel to firms in LA and NYC, and operates his own office in Nassau County. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Friday, April 29, 2016

My view for best practice for home resales, the contract of sale should contain a clause regarding the existence of an underground tank and that it has been removed or abandoned legally. Here in Nassau County, all tank removals and abandonments are recorded on a county database and
a record can be obtained through the Health Department by calling (516)
227-9691.

Wednesday, April 27, 2016

" At the hearing, the father testified that he was currently unemployed,
but that he had worked for a company "off and on" for over five years,
making $10 per hour, and that he did not have any medical disabilities
preventing him from working. Family Court determined that the Support
Magistrate imputed income to the father of $20,800 per year, and we
conclude that the determination is supported by the record and was based
on the relevant factors (see Lauzonis v Lauzonis, 105 AD3d 1351, 1351;
Matter of Monroe County Support Collection Unit v Wills, 21 AD3d 1331,
1331, lv denied 6 NY3d 705). "

"Income may be imputed to a party based on factors including his or her
educational background, past earnings, and employment potential (see
Zloof v Zloof, 104 AD3d 845; Cusumano v Cusumano, 96 AD3d 988, 990; Rand
v Rand, 29 AD3d 976; Scammaca v Scamacca, 15 AD3d 382; Kalish v Kalish,
289 AD2d 202). Here, the Supreme Court properly imputed income to the
plaintiff in the amount of only $150,000. Although his previous earnings
were much higher than that amount, he provided credible evidence of a
downturn in his field of employment."

Tuesday, April 26, 2016

Grandparent alienation is real but not every case is black and white. The facts in the following case sadly describes the complete deterioration of a family. In short, mother and father are not living together and both have terrible relationship with grandmother (who has engaged in some questionable conduct) but young child loves grandmother. To get a full picture of the facts, the case also refers to a prior matter involving grandmother and mother.

"This toxic relationship between petitioner and respondents cannot be
ignored; nevertheless, "an acrimonious relationship is generally not
sufficient cause to deny visitation" by itself (Matter of E.S. v P.D., 8
NY3d at 157; see Matter of Stellone v Kelly, 45 AD3d 1202, 1204
[2007]). Petitioner testified that the child lived with and was raised
by her until the child was over four years of age, and that the two had
developed a "very close bond" as a result.

.....

We are mindful that Family Court is painfully aware of the prior history
between the parties and may well have grounds to believe that the best
interests of the child lie in suspending visitation with petitioner
altogether. That being said, a sound and substantial basis in the record
before us, which illustrates a positive relationship between petitioner
and the child despite the toxic relationship between petitioner and
respondents, does not exist for that finding (see e.g. Matter of Burton v
Barrett, 104 AD3d at 1087; Matter of Johnson v Zides, 57 AD3d at 1320).
Under the circumstances present here, we deem it prudent to leave the
suspension of visitation in effect on a temporary basis and remit so
that Family Court may further develop the record, ascertain the wishes
of the child, and fashion an appropriate order (see Matter of Tamara FF.
v John FF., 75 AD3d 688, 690 [2010])."

Monday, April 25, 2016

Section 470 of the Judiciary Law mandates that a nonresident attorney
maintain an “office for the transaction of business” within the state of
New York. Last week, in Schoenefeld v. Schneiderman, the Second Circuit denied the constitutional challenges and the full decision, with dissent, can be found at:

Thursday, April 21, 2016

Yes that is from a real movie and this is from a real case. Even though the marriage lasted for almost 40 years, there are some circumstances where maintenance will not be awarded (here I would assume that the equitable distribution was large and that husband's income did not expect to be a significant amount):

"The parties were married in 1973 and, in 2011, the plaintiff commenced this action for a divorce and ancillary relief. On January 24, 2014, after a nonjury trial, the Supreme Court entered a judgment of divorce awarding the plaintiff one half of the marital assets and the sum of $60,000 in attorney's fees and costs. The Supreme Court declined to award the plaintiff maintenance....

......

In a matrimonial action, "the court may order maintenance in such amount as justice requires" (Domestic Relations Law § 236[6]). The amount and duration of spousal maintenance is committed to the sound discretion of the trial court, and each case is to be decided on its own unique facts (see Lamparillo v Lamparillo, 130 AD3d 580, 581; Heydt-Benjamin v Heydt-Benjamin, 127 AD3d 814, 815). Here, given that the plaintiff was already receiving Social Security retirement benefits and would receive a substantial distributive award, the Supreme Court did not improvidently exercise its discretion in declining to award the plaintiff maintenance (see Domestic Relations Law § 236[6]; Filippazzo v Filippazzo, 121 AD3d 835, 835-836; Signorile v Signorile, 102 AD3d 949, 951).

Wednesday, April 20, 2016

"The court, however, properly declined to direct the plaintiff to
maintain life insurance in the defendant's favor to secure her interest
in the plaintiff's pensions, as all matters of equitable distribution
were resolved by the partial stipulation of settlement. Judicial review
of settlement stipulations should be exercised sparingly (see Sabowitz v
Sabowitz, 123 AD3d 794, 795; Brennan-Duffy v Duffy, 22 AD3d 699, 699),
and a stipulation that is fair on its face should be enforced unless
there is proof of fraud, duress, overreaching, or unconscionability (see
Sabowitz v Sabowitz, 123 AD3d at 795; Brennan-Duffy v Duffy, 22 AD3d at
699). Here, the defendant did not establish any basis to modify this
provision of the partial stipulation of settlement."

Thursday, April 14, 2016

"By Administrative Order A/O/0004/16,
New and Revised Forms for Use in Matrimonial Actions in Supreme Court
were adopted effective January 25, 2016. These form revisions are
required by two legislative enactments last year: L. 2015 c. 269 (the
Maintenance Guidelines Law which amended statutory provisions regarding
temporary spousal maintenance, established formulae and procedures for
setting post-divorce (final) maintenance) and L. 2015 c. 387 (the law
as to treatment of maintenance in child support calculations). See http://www.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml"

Wednesday, April 13, 2016

In this case, I assume parents divorced while child was very young, Mother had remarried shortly thereafter and had half-sibling child, this was the household for child for some time but now new spouse had to move to Florida. I also assume, Father had the funds for liberal visitation schedule. And I also assume this litigation was somewhat difficult for the child.

"When reviewing a custodial parent's request to relocate, each
"request must be considered on its own merits with due consideration of
all the relevant facts and circumstances and with predominant emphasis
being placed on what outcome is most likely to serve the best interests
of the child" (Matter of Tropea v Tropea, 87 NY2d 727, 739; see Matter
of Rizvi v Shah, 126 AD3d [*2]984, 984; Matter of Estevez v Perez, 123
AD3d 707, 708). "The relevant factors include each parent's reasons for
seeking or opposing the move, the quality of the relationships between
the child and both parents, the impact of the move on the quantity and
quality of the child's future contact with the noncustodial parent, the
degree to which the custodial parent's and child's life may be enhanced
economically, emotionally, and educationally by the move, and the
feasibility of preserving the relationship between the noncustodial
parent and child through suitable visitation arrangements'" (Matter of
Estevez v Perez, 123 AD3d at 708, quoting Matter of Hall v Hall, 118
AD3d 879, 880-881). In relocation proceedings, the authority of this
Court is as broad as that of the hearing court, and a relocation
determination will not stand if it is not supported by a sound and
substantial basis in the record (see Matter of Doyle v Debe, 120 AD3d
676, 680; Matter of Caruso v Cruz, 114 AD3d 769, 771).

Here, the Family Court's determination that the child's best
interests would not be served by the relocation to Florida is not
supported by a sound and substantial basis in the record. Although both
parties were loving parents, the mother had been the child's primary
caretaker for all but one year of the child's life, and the child was 11
years old at the time of the hearing (see Matter of Hall v Hall, 118
AD3d at 883). The record indicates that the child has established a
primary emotional attachment to the mother (see Matter of Fegadel v
Anderson, 40 AD3d 1091, 1093), and that the child's emotional well-being
suffered after she was removed from the mother's care. Furthermore, the
child repeatedly expressed that she wished to relocate to Florida with
her mother. While a child's preference is not determinative, it is some
indication of what is in the child's best interests, particularly where,
as here, the court's interviews with the child demonstrate the child's
level of maturity and ability to articulate her preferences (see Matter
of Hall v Hall, 118 AD3d at 882-883; Matter of Winston v Gates, 64 AD3d
815, 818-819). Moreover, the child's relationship with her half-sibling,
who resides in Florida, will be disrupted if she remains in the
father's care, and the record indicates that the child and her
half-sibling have developed an emotional bond (see Matter of Shannon J. v
Aaron P., 111 AD3d 829, 831; Matter of Fegadel v Anderson, 40 AD3d at
1093).

The record also supports a finding that the denial of the mother's
petition to relocate and an award of sole residential custody to the
father will have a potentially negative impact on the child's
relationship with her mother. Although the mother's relocation will
inevitably have an impact upon the father's ability to spend time with
the child, a liberal visitation schedule, including extended visits
during summer and school vacations, will allow for the continuation of a
meaningful relationship between the father and the child (see Matter of
Tropea v Tropea, 87 NY2d at 742; Matter of Tracy A.G. v Undine J., 105
AD3d 1046, 1048).

Upon weighing the relevant factors, we find that the mother
established that the best interests of the subject child would be served
by permitting the relocation. Accordingly, the Family Court should have
granted the mother's petition to relocate with the child to Florida.
Furthermore, the Family Court should have denied that branch of the
father's cross petition which was for sole residential custody of the
child. In light of our determination, we remit the matter to the Family
Court, Nassau County, to establish an appropriate post-relocation
visitation schedule for the father (see Matter of Hall v Hall, 118 AD3d
at 883). As a final matter, we note that our determination is based on
the current record before this Court. Should there be a change of
circumstance in the future, either party may, at that point, petition to
modify the custodial arrangement (see Matter of Hirtz v Hirtz, 108 AD3d
712, 715)."

Friday, April 8, 2016

"New Yorkers for Responsible Lending (NYRL) has released a report titled “Divergent Paths: The need for more uniform standards and practices in New York State’s residential foreclosure conference process” which exposes wide variations in the way foreclosure settlement conference rules are implemented, leaving tens of thousands of New Yorkers at heightened risk of losing their homes depending on how settlement conferences are being run where they live.

When the outcome of your case – whether or not you get to stay in your home – depends on where you live, it becomes very clear that stronger enforcement and clarification of the rules is vital.

Almost 90,000 homeowners across New York State were still in foreclosure as of October 2015 - making settlement conferences just as important now as they were at the height of the foreclosure crisis."

"In this child support proceeding pursuant to Family Court Act article
4, the father was directed to pay child support in an order dated May
25, 2012. In August 2014, the father sought downward modification of his
child support obligation. A support magistrate dismissed the father's
petition in an order dated December 22, 2014. In an order dated February
4, 2015, the Family Court denied the father's objections to the support
magistrate's order. The father appeals.

A "party seeking modification of an order of child support has the
burden of establishing the existence of a substantial change in
circumstances warranting the modification" (Matter of Baumgardner v
Baumgardner, 126 AD3d 895, 896-897; see Matter of Rubenstein v
Rubenstein, 114 AD3d 798, 798; Matter of Suyunov v Tarashchansky, 98
AD3d 744, 745). "A reduction in income shall not be considered as a
ground for modification unless it was involuntary and the party has made
diligent attempts to secure employment commensurate with his or her
education, ability, and experience" (Raab v Raab, 129 AD3d 1050, 1050
[internal quotation marks omitted]). "The proper amount of support to be
paid . . . is determined not by the parent's current economic
situation, but by the parent's assets and earning capacity" (Matter of
Muselevichus v Muselevichus, 40 AD3d 997, 998-999; see Matter of
Baumgardner v Baumgardner, 126 AD3d at 897; Ashmore v Ashmore, 114 AD3d
712, 713; Matter of Solis v Marmolejos, 50 AD3d 691, 692).

Here, the Family Court properly denied the father's objections to the
order dated December 22, 2014. The record supported the Family Court's
determination that the father failed to establish that he used his best
efforts to obtain employment which was commensurate with his
qualifications and experience, or that his current income was
commensurate with his earning capacity so as to warrant a downward
modification of his child support obligation (see Raab v Raab, 129 AD3d
1050; Matter of Schlakman v Schlakman, 66 AD3d 786; Matter of Karrin v
Gottesman, [*2]16 AD3d 587). We note that the father failed to submit
evidence such as résumés that he had sent to potential employers, or
proof that he had been on any interviews in search of employment
commensurate with his education, ability, and experience (see Matter of
Schlakman v Schlakman, 66 AD3d at 787; Matter of Davis v Davis, 197 AD2d
622, 623; cf. Ritchey v Ritchey, 82 AD3d 948, 949)."

"Order, Supreme Court, New York County (Deborah A. Kaplan, J.),
entered January 30, 2014, which granted plaintiff father's motion to
terminate his monthly child support obligation of $4,250, unanimously
affirmed, without costs.

Supreme Court properly granted the father's motion for a termination
of his child support obligation, based upon his showing of a substantial
change in circumstances as a result of a change in the child's
residence from defendant mother to him (see e.g. Atlas v Smily, 117 AD3d
471 [1st Dept 2014]; Domestic Relations Law § 236[B][9][b]). Contrary
to the mother's contention, the court was not required to conduct a
hearing, since no triable issues of fact were raised (see Matter of
Stern v Stern, 40 AD3d 1108 [2d Dept 2007], lv denied 9 NY3d 813
[2007]). Indeed, the mother acknowledged in her opposing affidavit that
the child had resided with the father since September 2013, and the
19-year-old child also averred the same in her affidavit. The mother's
allegations of the father's undue influence on the child and other
allegations pertaining to the child's execution of her affidavit are
conclusory and insufficient to warrant a hearing (see David W. v Julia
W., 158 AD2d 1, 7-8 [1st Dept 1990]).

Subscribe To A Lawyer's Blog - JMP Esq.

Follow by Email

Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/